Wednesday, November 19, 2008

Federalist Society Conference

The Federalist Society's National Lawyers Convention is this Thursday through Saturday in Washington, D.C., information here.  The theme is "The People and the Judiciary" and the general description provides:

American courts, on both the state and federal level, are playing an increasingly visible role in deciding issues of enormous importance. Using the theme of this year’s Convention, The People and the Judiciary, the Federalist Society will examine the role of the “least dangerous branch.”  How, and by whom, should the judges who populate these various courts be selected?  And for what period of time, and under what conditions, should judges be retained?  Should their decisions be subject to review, revision and even reversal by the populace, or perhaps by the peoples’ elected representatives?  And how can standards of judicial conduct be determined, monitored, and enforced, without impinging on judicial independence?  Our four plenary panel sessions and various addresses will answer these and other questions.

Of special interest is the panel on "Civil Rights" which focuses on Heller and the Second Amendment, with speakers including: 

  • Prof. Nelson R. Lund, George Mason University School of Law
  • Mr. Clark Neily, Institute for Justice
  • Prof. Lucas A. Powe, Jr., University of Texas School of Law
  • Prof. Adam Winkler, University of California, Los Angeles School of Law
  • Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit

Also of special interest are two of the "showcase" panels on the power of the judiciary.  One on Friday promises a lively discussion of the issue of Article III's life-tenure provision:


Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Nonrenewable Terms?

The Supreme Court of the United States is the only major court of its kind in the world where justices have life tenure rather than serving for a term of years or subject to a mandatory retirement age.  Not only has every other western democracy rejected life tenure, but forty-nine out of fifty states have rejected it for their state supreme courts as well.  Is life tenure for U.S. Supreme Court justices a good idea, or is it an 18th Century anachronism?  What can or should be done about the fact that the average tenure of Supreme Court Justices has increased from 15 to 27 years since 1970?  Ought we to be concerned if vacancies on the Supreme Court open up only once every four years instead of once every two as happened between 1789 and 1970?

  • Prof. Stephen B. Burbank, University of Pennsylvania Law School
  • Hon. Charles J. Cooper, Cooper & Kirk, PLLC
  • Prof. James Lindgren, Northwestern University School of Law
  • Prof. David R. Stras, University of Minnesota School of Law
  • Moderator: Hon. J. Harvie Wilkinson III, United States Court of Appeals, Fourth Circuit

The Saturday morning panel promises a consideration of the relationship between legislatures and the judiciary, including the state constitutional issues previously discussed on ConLawProf here and here:

Showcase Panel III: Second Look Doctrines: Should Congress be Empowered to Override the Court? Should Voters in State Initiatives and Referenda be Able to Override State Supreme Courts?

Some scholars have praised Canada, Britain, and Israel for having a form of judicial review where a legislative majority in a clear statute can override an erroneous high court ruling or suspend it from taking effect.  The argument is that judicial review is inherently counter-majoritarian and undemocratic, so legislative majorities should be able to overrule erroneous Supreme Court decisions.  Should Congress be able to override U.S. Supreme Court decisions the way it can override a presidential veto?  What majority ought to be required for such an override?  Ought state voters in initiatives and referenda be able, by majority vote, to amend state constitutions so as to override state supreme courts?

  • Hon. Frank H. Easterbrook, United States Court of Appeals, Seventh Circuit
  • Prof. Richard A. Epstein, University of Chicago Law School
  • Prof. Neal K. Katyal, Georgetown University Law Center
  • Moderator: Hon. Larry D. Thompson, Pepsico, Inc., and Former Deputy United States Attorney General

Not surprisingly, Justice Scalia will give the closing address, as well as participate in a book signing of  Making Your Case: The Art of Persuading Judges.


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